Hi everybody. Welcome back.

Let's talk a little bit about other systems of criminal justice, and how, how they handled the problem of rising case loads against limited judicial resources. Let's turn first to England, which is probably the criminal justice system in the world that's closest to the American. Like the American system of criminal liability, the English system is also a system of proportional liability and despite some small differences. And it is an adversarial criminal procedure much like the American. One of the differences is that, where in America, the police force and the prosecutors office are typically administratively distinct form one another and administer through different agencies. In England and like, as in the continent of Europe, the police function and the judicial function. And in particular, the police and the prosecutorial function, are much more closely related to one another. And so England carries on, obviously in a much modernized way, the ancient tradition of having the policeman actually be the prosecutor of criminal defendants. Nonetheless, the system is much like the American system. And it works much the way the American system does. England is a society that's not all that different from America in that it is multicultural, it's urban and there's some crime. And there too, rising crime rates push against limited judicial resources, and makes it very difficult for every offender to be granted a full scale criminal trial. Which in England as in America, is the norm, that is the normative norm. And it is prescribed as the appropriate means by which criminal liability prices are to be imposed. So the question is, how do the British and English in this case, handle high case loads in limited resources? [COUGH] As did the United States Supreme Court, the English Court of Appeals, that is the English Court that governs the criminal justice system in England, struggled with bargaining during the 1960s and 70s.

But as we've seen, although the Americans would dread involuntarily into actually recognizing the existence of plea bargaining. Openly acknowledging it's central place in criminal justice and thus taking steps to regulate it openly, so that it worked better. In England, the Judge's lack of candor concerning the existence and prevalence of plea bargaining. While at the same time they created the channels which made the English form of plea bargaining work, and sustained those channels. This lack of candor about how the plea bargaining system works in England and whether it existed at all, created severe problems for the bargaining system in English criminal courts. What happened was that the courts repeatedly attacked over plea bargaining, calling it improper, and saying there was no place for it in English criminal justice. Nonetheless, they sensed that it was there, and they took care to preserve the very channels of communication between the sentencing authority and the defendant. Within which plea bargaining could, and almost certainly did occur on a relatively large scale. And the result of the courts repeatedly attacking plea bargaining at the same time that they were keeping the institutions that sustained it alive, the results were to defeat the purpose of bargaining itself. All of this, all of these difficulties are rooted in the well settled English principle that, voluntary guilty pleas demonstrate that the defendant is expressing remorse for his crime. And therefore had ought to mitigate the punishment that he receives. As a result of this principle, which is indeed not a, not a common reasonable principle. It's quite possible to argue, I think, and quite plausible to believe that if a defendant is general, genuinely contrite at the moment of his trial or sentencing. And shows genuine remorse and believes that he's done wrong, and adopts an attitude of penitence. Then he may well assuage some of the moral costs that his crime has imposed upon the society at large. And that may well justify in the sense

that we described the purposes of criminal liability, reducing the cost or the penalty, the criminal liability price, that is inflicted upon an offender who generally does show remorse. The sentences that we see, that generated the cases that that the English courts used to, to talk about plea bargaining, bargaining in the 1960s and 1970s, all have a kind of similarity to them. Almost all of them concern defendants who appear to have been offered plea bargains, but couldn't tell exactly what the plea bargain was about. Or was, were uncertain as to exactly what the terms of the plea bargain were, or even whether the judge would permit the plea bargain to take place. And so, they went to trial. And when they went to trial they were sentenced harshly and frequently the judges would say to them, if only you would of accepted the plea offer that was made to you before the trial. Then I would not have to sentence you as harshly as I'm sentencing you now. And so the, the, the defendants in these cases, essentially told that they'd been made fools because they didn't accept bargains. Which they might well have wanted to accept and instead went to trial, and now will have to be sentenced more harshly. They claimed about the unfairness of this treatment. And this was the typical posture of the cases that reached the English court of appeal in the late sixties, and the early 1970s. Mid to, early to mid 1970s. The first of these cases was a case called Regina versus Harper, decided in 1968. There the court of appeals said, it was quite improper for a judge to use language which may convey to a man that he's being sentenced because he has pleaded not guilty. Well, we cant very well say what those judges just said to those defendants. But, the court took care to keep the sentencing discount associated with guilty pleas, rationalized by remorse carefully in place. So while it may be quite improper to convey to a man that he's being sentenced as he is because he pleaded not guilty. It is of course proper to give a man a lesser sentence, if he's shown genuine remorse by pleading guilty.

This is not an impossible or contradictory position if the remorse shown defendant is genuine. But the rationale for the sentencing discount after a guilty plea offered by the Harper judge. Harper court, was immediately weakened in another case decided by the English Court of Appeal, Regina versus de Haan, also decided in 1968. And it went so far as to say, that a guilty plea by a defendant required that he be given a lesser sentence than he would have been given at trial, even if there is no showing of remorse in the case. Because according to de Haan said, it is clearly in the public interest to give those sentencing discounts after guilty pleas. Here out of the other side of its mouth, the Court of Appeals seems to be saying, that it's clearly in the public interest that people who guilty, plead guilty to crimes. And therefore save the state the expense of a full-blown trial, be given a lesser sentence than they would expect to receive, at a criminal trial if they insisted on everyone. So on the one hand the court is saying it's in, it's improper to tell an individual that he might be sentenced more leniently if he pleads guilty. But it is in the public interest that he be sentenced more leniently if he pleads guilty. A very, very, very difficult cross to bear for the judges. And so, these cases arose through the 1970s, where the judges tried to reconcile these apparently contradictory pronouncements that the court of appeal had said. On the one hand, it says plea bargains are bad, and that any overt mention that a defendant may get a sentencing discount simply for pleading guilty, these overt bargains are forbidden. Nonetheless, it's in the public interest that people who plead guilty get lesser sentences, and prosecutors and defendants ought to know that. In Regina versus Turner, decided in 1970, the Court forbade statements by a judge that a specific discount would follow a plea. But the court at the same time permitted discussion between judges and defense attorneys on matters as the court put it,

that can't be mentioned in open court. Two things about this. One is, that apparently in Britain, there's direct sentence bargaining going on, which doesn't happen in the United States. In the United States, the bargains are between the prosecutor who has the discretion to set the charge and the defense, and the judge keeps out of it. Because the judge is the sentencing authority, and Americans think it's improper for the sentencing authority to take part in plea bargaining. Apparently, the British agree, and it is improper says the court, for the judges to openly, the sentencing authority, to openly take part in plea negotiations. But by the same token, it's possible for the judge to call the defense attorney into the judge's chambers and discuss matters that can't be mentioned in open court. Which in the context of this case, almost certainly means that if the defendant pleads guilty, the defendant can expect such and such a sentencing discount from the judge who is making this offer to the defendant. Similarly, in a later case decided in 1968, Regina versus Atkinson, the court went out of its way to condemn plea bargaining in the in the strongest possible terms. And it condemned any hint to the defendant, that a sentencing discount would follow his guilty plea. As it was approving a longer sentence imposed after the trial of a defendant who'd refused a plea bargain offer of a lower sentence. Where the judge had explicitly told the defendant that this what he was doing. In Atkinson, the court sees a situation where the judge says to the defendant, if you'd accepted the plea bargain, I wouldn't be sentencing you this harshly. And the court says this is not an attempt to induce a plea bargain, either in this case or in earlier cases. Atkinson is simply Bordenkircher without the explicit acknowledgement of whats going on, and therefore the ability to regulate it openly. Whats happened in the criminal justice system in England, as one commentator put it in 1976, the law seems to have gotten into a very confused and puzzled state. On the one hand, it says that the accused ought to know that a plea of guilty will

attract a lighter sentence. Yet, on the other, where precise information is available. That is to say, where the judge could simply tell the defendant what the sentencing discount would be. The courts forbid that, and the defendant is to be denied that precise information. With the result that if the accused decides to plea not guilty and goes to trial, he will or may do so on a false premise. That is, that he won't be sentenced more severely at the trial. And one which his counsel, who's been encouraged to talk to the judge, knows to be false. What does all this mean? Well, it means that Professor Akerlof and Rudy Santobello wouldn't be surprised at what this does to the English plea bargaining system. Because the uncertainty facing English defendants, in the light of this inability of the judges to communicate plausibly and directly with the defendants about the terms of a proper plea bargain. The uncertainty facing English defendants is precisely the same as that which faced Santobello. Just as in the case of Santobello, there may well be a plea bargain sentence that the defendant would accept. See SPB on the left-hand side of the equation. But the defendant may not know about the existence of the plea bargain. Or the defendant may falsely informed that the sentence or the plea bargain that he can expect will be higher that the one that the judge might actually give him. And so, just as Santobello did, the uncertainty about exactly what the terms of a plea bargain in England might be. That is the uncertainty of about exactly what the extent of the sentencing discount being offered in the plea bargain is, creates the same situation here as it did for Santobello. When a defendant in England hears rumors about a plea bargain that he might agree to, he doesn't really know what the sentence is. And so he has to estimate that it might be higher than the sentence he might actually accept. And if that's the case, then plea bargains that would have been made in the

context of perfect information, are not being made. Because the courts have impeded the flow of information about the terms of trade regarding plea bargains in the, in between judges, the sentencing authorities, and the defendants. Again, this has the same outcome that it did in the Santobello situation, the defendants' uncertainty means that mutually beneficial plea bargains. Ones that defendants want, prosecutors want, and judges want, will not be undertaken. And in their place, costly trials will be undertaken that nobody wants. Where it lay in the power of the English judges to eliminate plea bargain, bargaining simply by eliminating the sentence discount itself. And by eliminating the channels by which the sentencing discount could, in principle, be communicated to defendants. Their refusal to do either of these things, renders their condemnations of plea bargaining rather hollow. And at the same time, their lack of candor about the existence of plea bargaining, makes the system work less well than it would otherwise. And indeed were they to regulate the system to increase the amount of information flowing between sentencing authorities and defendant in the plea bargaining situation. The plea bargaining system, which the English seemed to tolerate without acknowledging it, could work much better than it actually does.